[Federal Register Volume 61, Number 182 (Wednesday, September 18, 1996)]
[Notices]
[Pages 49132-49133]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23889]
-----------------------------------------------------------------------
DEPARTMENT OF ENERGY
Notice of Issuance of Decisions and Orders; Week of May 13
Through May 17, 1996
During the week of May 13 through May 17, 1996, the decisions and
orders summarized below were issued with respect to appeals,
applications, petitions, or other requests filed with the Office of
Hearings and Appeals of the Department of Energy. The following summary
also contains a list of submissions that were dismissed by the Office
of Hearings and Appeals.
Copies of the full text of these decisions and orders are available
in the Public Reference Room of the Office of Hearings and Appeals,
Room 1E-234, Forrestal Building, 1000 Independence Avenue, S.W.,
Washington, D.C. 20585-0107, Monday through Friday, between the hours
of 1:00 p.m. and 5:00 p.m., except federal holidays. They are also
available inEnergy Management: Federal Energy Guidelines, a
commercially published loose leaf reporter system. Some decisions and
orders are available on the Office of Hearings and Appeals World Wide
Web site at http://www.oha.doe.gov.
Dated: September 5, 1996.
George B. Breznay,
Director, Office of Hearings and Appeals.
Appeals
Glen M. Jameson, 5/13/96, VFA-0147
Glen M. Jameson filed an Appeal from a determination issued to him
on March 5, 1996, by the DOE's Oak Ridge Operations Office (Oak Ridge)
in response to a request for information that Mr. Jameson submitted
under the Freedom of Information Act (FOIA). In that determination, Oak
Ridge released the documents Mr. Jameson requested, but withheld
portions on the basis that they were exempt from disclosure pursuant to
Exemption 4 of the FOIA. Mr. Jameson argued that (i) PAI Corporation,
whose contract and invoices he was requesting, should not have been
permitted to have any input in the response to his request; (ii) the
contract is not a prospective procurement; (iii) DOE procurement has
been greatly curtailed, therefore, PAI is winding down and does not
have a competitive advantage to be protected; (iv) he does not work in
or with anybody in the federal contracting arena, and is in no position
to divulge the information to any of PAI's competitors; and (v) the
information that has been withheld is not privileged or confidential.
The DOE determined that the withheld information was exempt from
disclosure under Exemption 4, because the information was privileged or
confidential. Furthermore, the DOE indicated that (i) PAI's opportunity
to comment on the releasability of the requested information was
required by Executive Order No. 12,600, (ii) Mr. Jameson's identity and
whether he works in the contracting arena are irrelevant and (iii) even
though more information may be released after a contract is awarded,
the DOE must consider whether Exemption 4 applies. Accordingly, the
Appeal was denied.
James Minter, 5/16/96, VFA-0153
On April 19, 1996, James Minter filed an Appeal from a
determination issued to him on April 3, 1996, by the Director of the
Office of Public Affairs of the (DOE's) Albuquerque Operations Office.
In that determination, the Director partially denied a request for
information filed by Mr. Minter under the Freedom of Information Act
(FOIA). In his Appeal, Mr. Minter contends that additional responsive
information may exist. In considering the Appeal, the DOE confirmed
that the Director followed procedures reasonably calculated to uncover
any responsive information. Accordingly, the Appeal was denied.
Martha Julian, 5/14/96, VFA-0121
Martha Julian filed an Appeal from a determination issued to her
daughter, Lisa Doyle, by the DOE's Albuquerque Operations Office, in
response to a Request for Information submitted under the Freedom of
Information Act (FOIA). In considering the Appeal, the DOE found that
the Albuquerque Operations Office performed an adequate search for
radiation and other records of Mrs. Julian's father who worked at the
Sandia Laboratory from 1951 to his death in 1958. Accordingly, the
Appeal was denied.
Personnel Security Appeal
Albuquerque Operations Office, 5/17/96, VSA-0051
An individual whose access authorization was suspended filed a
Request for Review of a DOE Hearing Officer's recommendation against
restoration of the access authorization. The individual's access
authorization was suspended by the DOE's Albuquerque Operations Office
upon its receipt of derogatory information indicating that the
individual had a drug test that was positive for the use of marijuana.
The Hearing Officer rejected the individual's position that the
positive drug test was caused by inhaling second hand marijuana smoke
in a night club. In the request for review, the individual stated that
the Hearing Officer did not give proper weight to the testimony of an
expert witness, who stated that it was possible for the individual to
have a positive drug test based on passive inhalation of marijuana. In
his Opinion, the Director of the Office of Hearings and Appeals found
that even if it is theoretically possible to have a positive drug test
through passive inhalation, it was proper for the Hearing Officer to
require corroborating evidence showing that the positive drug test in
this case resulted from second hand marijuana smoke. Accordingly, the
Director did not recommend that the individual access authorization be
restored.
Whistleblower Proceeding
Daniel L. Holsinger K-Ray Security, Inc., 5/16/95, VWA-0005; VWA-0009
Daniel L. Holsinger filed a whistleblower complaint against Watkins
Security Agency, Inc. (WSA) in which he alleged that the contractor
retaliated against him for making disclosures concerning possible
thefts of DOE property by another WSA employee at the DOE's Morgantown
Energy Technology Center. After investigating the complaint, the Office
of Contractor Employee Protection (OCEP) found that Holsinger had made
a protected disclosure and that thereafter the contractor had
retaliated against him by suspending him and by terminating his
employment as a part-time security guard. At the same time, OCEP found
that Holsinger had not shown that WSA had retaliated against him with
regard to two other disciplinary actions. OCEP proposed that WSA
provide Holsinger with lost pay and legal fees and that the current
contractor, K-Ray Security, Inc. (K-Ray), be required to reinstate
Holsinger to his former position as a security guard.
[[Page 49133]]
WSA, K-Ray and Holsinger all requested a hearing to challenge these
findings and conclusions.
Prior to the hearing, Holsinger and WSA entered into a monetary
settlement concerning Holsinger's claims against WSA. As a result, WSA
did not participate in the hearing and was later dismissed as a party
to the proceeding, and Holsinger dropped his objections to the findings
in OCEP's Report and Proposed Disposition. The hearing focused on the
issue of Holsinger's reinstatement by K-Ray.
The OHA Hearing Officer found that a violation of 10 C.F.R.
Sec. 708.5 had occurred. Specifically, he found that Holsinger had
proven by a preponderance of the evidence that he engaged in protected
activity under 10 C.F.R. Part 708 and that this activity was a
contributing factor to his suspension and his dismissal from employment
by WSA. He also found that WSA and K-Ray had failed to prove by clear
and convincing evidence that WSA would have taken these adverse
personnel actions absent Holsinger's protected activity. The Hearing
Officer evaluated the arguments presented by K-Ray and Holsinger and
concluded that reinstatement of Holsinger by K-Ray was a necessary and
appropriate action to effect full relief for Holsinger. He therefore
ordered K-Ray to reinstate Holsinger.
Implementation of Special Refund Procedures
Gil-Mc Oil Corporation, et al., 5/16/96, LEF-0054 ET AL.
The DOE issued a Decision and Order implementing procedures for the
distribution of $1,140,553 (plus accrued interest) obtained from Gil-Mc
Oil Corporation, LeClair Operating Company, SRG Corporation, Petroleum
Carrier Company, and Dane Energy Company. These funds were remitted by
each firm to the DOE to settle possible pricing violations with respect
to sales of crude oil. The DOE determined that these monies will be
distributed in accordance with the DOE's Modified Statement of
Restitutionary Policy Concerning Crude Oil Overcharges, 51 Fed. Reg.
27,899 (August 4, 1986). Under that policy, 20% will be reserved for
injured purchasers of refined products, 40% will be distributed to the
federal government, and 40% of the states.
Texas American Oil Corp., 5/14/96, VEF-0019
The DOE issued a Decision and Order implementing procedures for
disbursement of $48,307.13 in crude oil overcharge funds obtained from
the bankrupt estate of Texas American Oil Corporation. The DOE ordered
that these funds, plus accrued interest, be disbursed to individual
claimants. The DOE determined that this allocation is required by the
decision of the United States Court of Appeals for the Federal Circuit
in Texas American Oil Corp. v. DOE, 44 F.3d 1557 (Fed. Cir. 1995) (en
banc). In that case, the court held that the DOE's claim in the Texas
American bankruptcy proceeding on behalf of individual claimants should
have a higher priority than its claim on behalf of the states and
federal government. Pursuant to that decision, the bankruptcy court
distributed to the DOE an amount equivalent to 20 percent of its
liquidated claim in the Texas American bankruptcy proceeding, since
under the DOE's Modified Statement of Restitutionary Policy in Crude
Oil Cases, 51 Fed. Reg. 27899 (August 4, 1986), a maximum of 20 per
cent of the crude oil overcharge funds remitted to the DOE is reserved
for injured purchasers of refined petroleum products.
Request for Exception
Jacobs Oil Company, 5/13/96 VEE-0021
Jacobs Oil Company filed an Application for Exception from the
provisions of the Energy Information Administration (EIA) reporting
requirements in which the firm sought relief from filing Form EIA-782B
entitled ``Resellers'/Retailers' Monthly Petroleum Product Sales
Report.'' Jacobs argued that filing these surveys was time consuming
and onerous. However, the DOE determined that Jacobs was not suffering
a special hardship, inequity or unfair distribution of burdens.
Accordingly, exception relief was denied.
Refund Application
State Escrow Distribution, 5/17/96, RF302-18
The Office of Hearings and Appeals ordered the DOE's Office of the
Controller to distribute $44,100,000 to the State Governments. The use
of the funds by the States is governed by the Stripper Well Settlement
Agreement.
Refund Applications
The Office of Hearings and Appeals issued the following Decisions
and Orders concerning refund applications, which are not summarized.
Copies of the full texts of the Decisions and Orders are available in
the Public Reference Room of the Office of Hearings and Appeals.
BAYLY CORP............................................... RC272-0335 05/15/96
CITY OF NORTH EASTON ET AL............................... RF272-98102 05/15/96
CRUDE OIL SUPPLE REF DIST................................ RB272-00076 05/17/96
GULF OIL CORPORATION/EDDY GALLUCCI'S GULF................ RF300-19982 05/16/96
IRENE VORA............................................... RJ272-00008 05/17/96
MOTOR TRANSPORT CO. ET AL................................ RF272-78490 05/17/96
TOWNSEND BROS. ET AL..................................... RK272-02405 05/16/96
Dismissals
The following submissions were dismissed:
------------------------------------------------------------------------
Name Case No.
------------------------------------------------------------------------
ALBUQUERQUE OPERATIONS OFFICE........................... VSO-0086
CHESAPEAKE & OHIO RAILROAD.............................. RF272-3439
CINTAS CORP............................................. RK272-3499
KONCZAL ENTERPRISES, INC................................ RF304-15007
------------------------------------------------------------------------
[FR Doc. 96-23889 Filed 9-17-96; 8:45 am]
BILLING CODE 6450-01-P
